2018 PLP 130 (CLCN)

Through this regular first appeal the appellant has assailed the judgment and decree dated 17.12.2012 passed by learned Civil Judge, Islamabad whereby suit of appellant for specific performance of agreement to sell was dismissed.

2. Brief facts referred in the instant appeal are that appellant filed a suit on 14.05.2002 against respondent No.1 for specific performance of agreement to sell dated 06.03.2002 (Exh.P5) regarding sale/purchase of Shop No. 10 along with half portion of flat situated at Block No.12-E, F-7 Markaz, Islamabad against total sale consideration of Rs.3,150,000/- whereby respondent No.1 received in cash Rs.25,000/- as token money and amount of Rs.300,000/- through cheque No.845509 dated 06.03.2002 drawn on National Bank of Pakistan, F-7/2 Branch, Islamabad. As per the terms and conditions of the agreement, appellant was required to pay the remaining sale consideration of Rs.2,825,000/- to respondent No.1 at the time of transfer of the suit property, whereas respondent No.1 failed to transfer the suit property in time and as a result whereof appellant had served three legal notices to respondent No.1 through TCS and Registered Post/Airex which were not received by respondent No.1 and he transferred the suit property in the name of respondent No.3/Ajmal Khan on 13.12.2005 during the pendency of appellant's suit. The suit was contested by respondent No.1 through written statement with the plea that time is the essence of the contract. After framing of issues by the learned Civil Court, appellant has produced four witnesses and relied upon Exh.P1 to Exh.P13 whereas respondent No.1 produced three witnesses. After recording of pro and contra evidence of the parties, the learned Civil Court dismissed the suit vide judgment and decree dated 17.12.2012. Hence, the instant regular first appeal.

3. Learned counsel for appellant contended that the impugned judgment and decree dated 17.12.2012 is arbitrary, illegal, unlawful, and against the facts and law; that it is settled that parties are responsible for completion of agreement whereas respondent No.1 has not complied with the terms and conditions of the agreement; that learned Civil Court has decided Issue No.1 in favour of appellant but taken a contrary view in the findings of Issue No.2 whereas after the confirmation of findings of the learned Civil Court on Issue No.1, the suit should have been decreed in favour of appellant; that whether the time is the essence of the agreement or otherwise but learned Civil Court has misread the said evidence and ignored the legal notice dated 18.09.2002 (Exh.P6) sent by respondent No.1 to appellant for extension of time which duly confirms that time was never the essence of the agreement; that the learned Civil Court has framed Issue No.4 but ignored the documentary evidence and relied upon the oral testimony; that the learned Civil Court has ignored the documentary evidence Exh.P8, Exh.P10 as well as the envelops Exh.P7, Exh.P9 and Exh.P9/1 and Exh.P11 which otherwise confirms that the completion of date of the agreement has been enhanced; that respondent No.1 never asked appellant to pay the balance sale consideration and this fact has been admitted by him and even he has not provided copy of the lease agreement as agreed under the terms and conditions of the agreement, hence time is not the essence of the agreement.

4. Conversely, learned counsel for respondent No.1 contended that time is essence of the agreement which has been fixed as 06.04.2002 but appellant neither paid the balance sale consideration of Rs.2,850,000/- throughout the proceedings nor even deposited the same in the Court, therefore, he is not entitled for discretionary relief; that the assertion made by appellant regarding payment of Rs.2,850,000/- is totally false and he has only paid Rs.300,000/- as earnest money through cheque and the balance consideration is Rs.2,850,000/-; that respondent No.1 needs the balance sale consideration for his business but appellant failed to pay the amount in time, whereby respondent No.1 has transferred the suit property to respondent No.3 during the pendency of the suit. On the other hand, learned counsel for respondent No.3 also appeared in the Court as witness of the respondent and confirmed the further transfer nomination in his favour through respondent No.1.

5. Arguments heard, record perused.

6. From the perusal of record it has been observed that the learned Civil Court after closing of pleadings has framed the following issues:

1. Whether defendant No.1 entered into a sale agreement with plaintiff regarding the suit property on 6.3.2002 for consideration of Rs.31,50,000/- and he received an amount of Rs.3,25,000/-? OPP

2. If the above issue is proved in affirmative whether the plaintiff is entitled to decree for specific performance of the agreement as prayed for? OPP

3. Whether the suit is not maintainable in its present form? OPD

4. Whether the suit is false, frivolous and vexatious and the defendants are entitled to special costs under section 35-A of C.P.C.? OPD During pendency of the suit, the suit property was transferred in the name respondent No.3, therefore, additional issues had been framed on 23.04.2009, which read as under: 4-A Whether time was essence of the contract and the plaintiff miserably failed to fulfill his part of contract on the terms agreed in the agreement to sell? OPD 4-B Whether defendant No.3 is bona fide purchaser for consideration without knowledge of prior agreement to sell in favour of the plaintiff? OPD-3 After amendment of the plaint on 07.07.2011, Issue No.4-C had also been incorporated, which reads as under: 4-C Whether the sale deed No.3314, dated 4.8.2004 and transfer of suit property dated 13.12.2005 in CDA record in favour of defendant No.3 is illegal without lawful authority and hit by principle of lis pendens, so is void and liable to be cancelled. OPP

7. Appellant has produced PW-1/Farukh Najam Qureshi, UDC, Estate Management, CDA, Islamabad who recorded his statement and produced the record of Plot No.12-E F-7 Markaz, Islamabad and as per his record, Saif-ur-Rehman son of Khalil-ur-Rehman/respondent No.1 was allottee of the said plot and who had transferred the same, however he conceded that CDA is also part of the civil suit and legal proceedings have been notified in the CDA record. He produced letter dated 15.06.2004 (Exh.P1) issued by the CDA to appellant with the information that there is neither any stay order nor any notice has been issued from the Supreme Court. Similarly, he also produced another letter dated 01.07.2003 (Exh.P2) issued by the Estate Management Directorate, CDA to appellant whereby the Deputy Director-I, CDA has acknowledged the judicial record of the proceedings/pendency of the case. Likewise, another letter dated 07.06.2005 (Exh.P3) has also been produced by the said PW. He further confirms the availability of complete original certified record of the Court in his record. PW-1 further states that as per the record of the CDA, the suit property has been conditionally transferred in the name of Muhammad Ajmal Khan/respondent No.3 on 13.12.2005 subject to decision of the case. However, during the course of cross-examination, PW-1 acknowledged that he only brought the record of the plot and conceded that he is neither aware as to when ex parte proceedings have been initiated against CDA nor he is in a position to explain the contents of letters referred as Exh.P1, Exh.P2 and Exh.P3 (letters issued by Deputy Director-I, CDA to Muhammad Hafeez/appellant regarding pendency of the civil suit and status quo order), however he acknowledged that all the said three letters have been referred to appellant.

8. Appellant has produced Syed Iqbal Jaffar, Post Master of Post Office, F-8, Islamabad as PW-2, who stated that as per their office rules, the postal record of April, 2002 has been destroyed though he confirmed that registered receipt No.385 dated 03.04.2002 (Exh.P4) was issued from his post office. During the course of cross-examination, PW-2 acknowledged that he joined the post office as Post Master on 28.06.2011 at F-8, Islamabad and that Exh.P4 is without signature, however he could not confirm the delivery of the registered post (Exh.P4), even he is unable to explain as to when the registered post had been sent.

9. Appellant himself appeared as PW-3 and stated that in the year 2002 he came to know through Saeed that a property comprising of Shop No.10, Block 12-E, F-7 Markaz, Islamabad owned by respondent No.1, who is owner of the half of the portion, interested to sell his property. On 06.03.2002, Saeed arranged and managed the sale/purchase deal between appellant and respondent No.1 whereby meeting was held at office of Masood Mir and the sale of property was agreed for Rs.3,150,000/- whereas Rs.25,000/- was paid in cash as earnest money and a cheque of Rs.300,000/- was issued in the name of respondent No.1. PW-3/appellant further stated that Masood Mir had arranged and prepared the stamp papers for execution of the agreement whereby he and respondent No.1 signed the same along with the witnesses, which is referred as Exh.P

5. He further stated that as per agreement the balance sale consideration was to be paid within one month of the transfer of the property and the time completion of deal was fixed as 06.04.2002. He also stated that he asked his dealer for completion of the deal whereby his dealer told him that he has lost contact with respondent No.1, whereupon PW-3/appellant approached a lawyer on 01.04.2002 for the purpose to send a legal notice to respondent No.1, whereby the same was done on the same day. However, on receiving no response from respondent No.1, PW-3 approached again his lawyer on 03.04.2002 and sent another legal notice through registered post and TCS, though the same was returned as unserved for the reason that respondent No.1 is out of country, whereupon PW-3/appellant has filed a suit on 14.05.2002. PW-3 further states that in September, 2002, respondent No.1 issued a legal notice (Exh.P6) through his lawyer with the direction to pay the balance sale consideration along with compensation of Rs.1,000,000/-. PW-3 further states that in January, 2003, representative of respondent No.1 came along with respondent No.3 at the suit property for the purpose of sale/purchase whereby appellant told him that he had already purchased the suit property and a suit is pending before the Court. PW-3 thereupon approached the CDA office and submitted a written application regarding the entire transaction. However, in the year 2004, PW-3 was informed that the suit property has been purchased by respondent No.3 whereupon he again approached the CDA office whereby he was enlightened that the suit property has been conditionally transferred subject to decision of the case, and accordingly, Muhammad Ajmal Khan was impleaded as defendant in the suit. PW-3/appellant also stated that he is ready to pay the balance sale consideration and the bogus transfer in the name of respondent No.3 may be cancelled and the suit property may be decreed in his favour. However, during the course of cross-examination PW-3/appellant acknowledged that respondent No.1 usually lived in London though he is not aware of his address and that he was present at the time of execution of the agreement but Exh.P5 has been executed through the dealer Saeed Ahmad. PW-3 also acknowledged that he and Saeed Ahmad signed the Exh.P5 but later on he denied that he is unaware as to whether Saeed Ahmad had signed the same or not. PW-3 further stated that Masood Mir, Abdul Razzaq, and Saeed Ahmad signed the document Exh.P5 as witnesses. He also acknowledged that: PW-3 further acknowledged that he paid Rs.25,000/- as token money and he is unaware as to whether Saeed had paid the amount to respondent No.1 or not. He also acknowledged that: PW-3 further acknowledged that he had arranged the amount from his relatives by selling his land, however he has neither any proof regarding selling of his land nor he is able to produce relatives/witnesses from whom he had received the amount as they were not in Pakistan. However, he has referred two persons namely Sadaqat, his brother-in-law, who is living in Qatar, and Maqsood, who is living in Saudi Arabia. He further acknowledged that he received the amount in 2001 to purchase the property, however he has not returned the amount till date and he has transferred his own land to those two persons in lieu of the said amount but he has not brought any proof of the same. He further acknowledged that he is a taxpayer but he has no NTN number.

10. Appellant has produced his brother Shakeel Hussain as PW-4 and stated that he witnessed the discussion made between his brother/appellant, respondent No.3 and dealer of respondent No.1 whereby respondent No.3 visited the suit property for the purpose to purchase it whereas appellant told them of his deal with respondent No.1 for which he has already paid a token money. However, during the course of cross-examination, PW-4 confirmed that his brother has arranged the amount from his brothers-in-law in lieu of his land in village. He also conceded that he came to record his testimony on the instructions of his brother/appellant.

11. Appellant produced Syed Muhammad Tayyab, Advocate as PW-5 who stated that on the instructions of appellant he sent a legal notice to respondent No.1 on 03.04.2002 regarding the agreement dated 06.03.2002 of the suit property whereby respondent No. 1 was directed to receive the balance sale consideration and transfer the suit property. PW-5 further stated that he sent the said legal notice through registered post/AD, Arex as well as TCS though the same was received back as unserved along with the envelop which he kept intact as received back. On the directions of the Court, both envelops (Exh.P7 and Exh.P9) were de-sealed and opened whereby legal notices (Exh.P8 and Exh.P10) were confirmed. However, during the course of cross-examination, PW-5 confirms that nothing was mentioned on Exh.P7 regarding the fact that respondent No.1 had refused to receive the notice and he is unable to confirm that time was the essence of the contract or not, whereas he also confirms that the consignee referred in Exh.P9 was in UK.

12. Appellant has produced PW-6/Syed Ghous Jillani Shah, TCS employee, who contended that he had issued the receipt (Exh.P11) as a booking staff which has been submitted by Syed Muhammad Tayyab Shah, Advocate to be delivered in Attock on 03.04.2002. He further states that the TCS record was maintained for six months only and same was destroyed thereafter, and all such record related to instant case has been destroyed. However, during the course of cross-examination, PW-6 confirms that he is not in possession of any notice and he is presently working in Regional Office of the TCS. He further acknowledged that Exh.P11 as issued from his office and he was not an employee of TCS at that time, whereas he is neither able to confirm the signature of person who has signed Exh.P11 nor he is in possession of the record of Exh.P

11. He also confirms that there is no confirmation regarding receiving of notice Exh.P11.

13. On the other hand/respondent No.1 has produced Sardar Abdul Razzik as DW-1 who states that he was present during execution of the agreement to sell Exh.P5 dated 06.03.2002 regarding sale of Shop No.10 along with half portion of Flat No.10 against the sale consideration of Rs.3,150,000/- whereas Rs.25,000/- was paid in cash and Rs.300,000/- was paid through cheque whereas remaining sale consideration was to be paid within a month. He also acknowledged his signature as Exh.P5/1 and confirmed that: During the course of cross-examination, DW-1 acknowledged the following facts: DW-1 further acknowledged that respondent No. 1 told him that amount was not paid in time, however he acknowledged that appellant had not contacted him regarding arrangement of the balance sale consideration.

14. Respondent No. 1 appeared as DW-3 and states that he is living in UK and having a wholesale business. He also acknowledged that he was owner of half of the property and the agreement was executed through Mir Enterprises. The total sale consideration was agreed as Rs.3,150,000/- and only Rs. 300,000/- was received as earnest money whereas one month time was fixed for transfer of the property. He further states that after receiving the earnest money, he went back to UK though he came of Pakistan prior to the settled date for transfer of the suit property, whereby he also informed Mir Enterprises and Saeed Ahmad that he came back to Pakistan to receive the balance sale consideration and ready to transfer the suit property though he was informed by Saeed Ahmed, representative of appellant, that appellant has gone to Dubai. He further states that he has exchanged hot words with Saeed Ahmad for wasting his precious time and after six months, he sold out the suit property to respondent No. 3 for Rs. 3,000,000/-. However, during the course of cross-examination, DW-3 acknowledged that the agreement Exh.P5 executed with appellant contains two pages and signed by him. He also acknowledged that he appointed Mr. Attiq-ur-Rehman, Advocate for this case, who issued legal notice (Exh.P6) through registry No.486 dated 18.09.2002. He also acknowledged that as per Exh.P5 he has to receive the balance sale consideration on 06.04.2002 and transfer the suit property, however he acknowledged that he went back to UK one week prior to the due date. He also acknowledged that as per Clause 4 of Exh.P5, he has not issued any notice to the tenant. He also confirmed that as per Clause 5 of Exh.P5, he has to hand over a copy of the lease agreement of the tenant prior to 11.03.2002 which was not delivered and he can encash the cheque of Rs.300,000/-. However, during the course of cross-examination, respondent No.1/DW-3 acknowledged that: Similarly, respondent No. 1 has also acknowledged that he appointed Mr. Attiq-ur-Rehman, Advocate in September, 2002 who has sent a legal notice, however he had not claimed his balance sale consideration from appellant and lastly he acknowledged that:

15. Respondent No.1 has produced Masood Ahmed Mir as DW-4 who is a real estate agent working under the name and style of Mir Enterprises Pvt. Ltd. He states that agreement was executed in his office in presence of Saeed Ahmad, when appellant and respondent No.1 executed the agreement Exh.P5 regarding the suit property whereas earnest money and cheque was taken through Saeed Ahmad. He further states that as per agreement the suit property was sold out against total sale consideration of Rs.3,150,000/- and Rs.300,000/- was paid as earnest money and no other amount was being paid in any manner. He further stated that a contact has been made to Saeed Ahmad on the date fixed but they failed to pay the balance sale consideration within the stipulated period and he himself acknowledged that amount has not been arranged and the deal was cancelled. However, during the course of cross-examination, DW-4 acknowledged that Saeed Ahmad has not signed Exh.P5 as witness, purchaser, or as a property dealer, however the name of appellant Muhammad Hafeez is present along with his signature as purchaser of the property. He also acknowledged that at the time of execution of Exh.P5, he was present along with Abdur Razzaq who has signed the document and the terms were written in his presence. He also acknowledged that respondent No.1 left Pakistan for UK 2/3 days prior to the completion date of the agreement i.e. 06.04.2002 though he is unable to confirm as to whether appellant had arranged the balance sale consideration or not.

16. Respondent No.1 has also produced the subsequent vendee Muhammad Ajmal Khan/respondent No.3 as DW-2 who stated that he purchased the suit property on 04.08.2004 from respondent No.1 against total sale consideration of Rs.3,000,000/- and the said deal was confirmed in England and he had paid 2000 (Two Thousand UK Pound) as earnest money to respondent No.1. He also stated that suit property was transferred through Khan Afsar, attorney of respondent No.1, who executed sale deed in his favour which was subsequently transferred in the CDA office. DW-2 further stated that at the time of the agreement respondent No.1 told him that the suit property has already been sold by him. He also acknowledged that in January, 2003, he along with respondent No.1 verified the record of the CDA whereafter amount of Rs.2.8 million was paid. He also acknowledged that when he visited Pakistan, respondent No.1 told him that a suit regarding the suit property is pending before the Civil Court wherein a restraining order has been passed.

17. From the perusal of available record and evidence submitted by both the parties, following facts have been emerged on record. (i) Agreement Exh.P5 was executed between appellant and respondent No.1 on 06.03.2002 regarding sale/purchase of Shop No.10 and half portion of the flat situated at Plot No.12-E, F-7 Markaz, Islamabad against total sale consideration of Rs.3,150,000/-. (ii) Amount of Rs.25,000/- in cash along with Rs.300,000/- through cheque No.843509, National Bank of Pakistan, F-7/2, Islamabad was paid as earnest money. (iii) 30 days period had been fixed for the transfer of suit property and payment of balance sale consideration. (iv) Agreement Exh.P5 is admitted between the parties as well as part of sale consideration has been received as earnest money. (v) Appellant/PW-3 acknowledged that Exh.P5 document was signed by Masood Mir, Abdur Razzaq and Saeed Ahmed, and he confirmed that final date of conclusion of agreement was 06.04.2002, which as not extendable. (vi) Appellant/PW-3 is not aware as to whether Rs.25,000/- has been paid as token money through Saeed to respondent No.1 or not. (vii) Appellant/PW-3 had only Rs.1,000/- and Rs.2,000/- in his bank account from the date of agreement till 06.04.2002. (viii) Appellant/PW-3 has not produced any witnesses or relatives as claimed by him through which he has arranged the balance sale consideration. (ix) The legal notices (Exh.P7 Exh.P9) sent by appellant through his counsel Syed Muhammad Tayyab, Advocate/PW-5 were returned undelivered. (x) The PW-6/TCS record keeper is neither authorized to record his statement nor he has any record with him to prove that the notice has been received by the other side through TCS. (xi) Appellant neither requested the learned Civil Court or the appellate Court in any manner on any date after 06.04.2002 for deposit of balance sale consideration nor showed his intention to deposit the same by filing any such application in last 16 years.

18. The above referred evidence clearly proves that agreement Exh.P5 regarding the suit property contains a specific timeline for the performance of agreement i.e. 06.04.2002 which is not extendable in any manner, hence, for all legal purposes and intents, the time is the essence of the contract and it is settled law that time is generally not the essence of contract rather it is an absolute rule which could not be rebutted and in this case when it has been acknowledged on record that the timeline is not extendable, it means that the essence of time is the main pillar which requires determination in this case and it has been observed from the above referred evidence that appellant failed to honor the timeline clause referred in the contract and as such it has also been determined that the intention of the parties is absolutely clear and parties have to perform their chain of events in line with the said date but the initial onus which is upon the appellant to prove that he was ready and willing to perform his part of contract is not visible at this stage, therefore, the delay in performance of contract may make specific performance of contract inequitable and non-enforceable where value of the suit property has changed or has been increased or where there are reasonable grounds legitimately inferred that appellant delayed the performance of contract with a view to speculate for a purpose awaiting a term favorable to him. Reliance is placed upon PLD 1987 Lahore 607 (Ali Muhammad v. Shah Muhammad, etc.).

19. In view of above background, the conduct of the parties is the most relevant feature in order to assess the real intention to perform the contract. In this case, appellant being a buyer had paid an earnest money of Rs.325,000/- at the time of execution of agreement, whereas the balance sale consideration was to be paid at specific date i.e. 06.04.2002. It is also agreed between the parties that the earnest money would stand forfeited if appellant fails to pay the balance sale consideration within the stipulated time. Although, appellant has filed a suit for specific performance of contract against respondent No.1 with the contention that he is ready to pay the balance sale consideration and he is not a defaulter in any manner but the record speaks otherwise as there is neither a single evidence through which it could be gathered that appellant was willing to pay the balance sale consideration nor he ever applied before the Court for the same purpose. Appellant also conceded that the time could not be extended and he had only Rs.1,000/- or Rs.2,000/- in his bank account from the date of agreement till 06.04.2002, which clearly proves that he was out of money and as such he has taken the plea that his relatives have arranged the balance sale consideration but till date he has not brought any such evidence on record and even proved this aspect in a positive manner. On the other hand, it is obligatory upon plaintiff filing of a suit for specific performance to make an offer before the Civil Court regarding deposit of balance sale consideration at the very first date to show his bona fide and good faith that he is ready to perform his part of contract. Reliance is placed upon PLD 2014 SC 506 (Liaquat Ali Khan, etc. v. Falak Sher). Similarly, this Court has to observe from the circumstances brought on record that the time is the essence of contract, especially when respondent No.1 agreed to sell the suit property to appellant by executing agreement Exh.P5 whereby the cut-off date was agreed as 06.04.2002, whereas it is a clear cut intention on the part of respondent No.1 who has an authority to fix the time as essence of the agreement, therefore, we are of the considered view that time is the essence of contract and appellant has failed to honor such commitment. Even otherwise, to clarify the situation it is useful to reproduce section 22 of the Specific Relief Act, 1877, which reads as under: "

28. Discretion as to decreeing specific performance. The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. I. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part. II. Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff. III. Where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. The plain reading of the above referred provision gives rise to the situation that the relief of specific performance claimed by appellant is purely discretionary in nature and the Court is not bound to grant such relief merely on the ground that it is lawful to do so.

20. It is trite law that discretion has to be exercised by the Courts on the basis of sound and reasonable analysis of relevant facts of each case guided by judicial principles and not in an arbitrary manner, therefore, while examining the question of exercise of jurisdiction in terms of section 22 of the Specific Relief Act, 1877, the factor of time clause, the gesture for payment of balance sale consideration within timeframe referred in the agreement, and other circumstances if brought on record further give rise to a situation that as to whether the parry, who is seeking specific relief, is entitled for equitable relief or otherwise. In order to confirm the stance, we have gone through section 24 of the Specific Relief Act, 1877 which reads as under:

24. Personal bars to the relief. Specific performance of a contract cannot be enforced in favour of a person: (a) who could not recover compensation for its breach; (b) who has become incapable of performing, or violates, any essential term of the contract that on his part remains to be performed; (c) who has already chosen his remedy and obtained satisfaction for the alleged breach of contract; or (d) who, previously to the contract, had notice that a settlement of the subject-matter thereof (though not founded on any valuable consideration) had been made and was then in force. The above referred details, if read in conjunction with section 22, establishes that the specific performance of contract cannot be enforced in favour of person who violates the terms of the contract affixed on his part to be performed. In this case, appellant neither deposited the balance sale consideration nor showed any intention to pay balance sale consideration in last 16 years, therefore, the exercise of discretion in his favour could not be claimed as matter of right. Reliance is placed upon PLD 2014 SC 506 (Liaquat Ali Khan and others v. Falak Sher and others).

21. The apex Court in case reported as 2017 SCMR 2022 (Hamood Mehmood v. Mst. Shabana Ishaque) has given another dimension to the suit for specific performance in which it has been declared that it is mandatory for a person, whether plaintiff or defendant, who seeks enforcement of agreement under the Specific Relief Act, 1877, has to apply on his first appearance before the Court to deposit the balance sale consideration and in failure whereof his conduct should be considered as contemptuous and omission in this regard would entail a dismissal of his suit with no extension of benefit. Even otherwise, we are also mindful of the fact that constant increase in the value of properties and devaluation further affects the cases and matters pending before the Courts, therefore, the gesture to deposit the amount at the first instance is mandatory, even otherwise, request for deposit of balance sale consideration after the decision of the application under Order XXXIX, Rules 1 and 2, C.P.C. is not appreciated unless it has been ordered by the Court. However, the delay on the part of plaintiff to deposit the balance sale consideration gives rise to a negative gesture on his account that he is unable to perform his part of contract, therefore, such kind of suit should be dismissed.

22. On the basis of evidence and principles of law referred above, this Court reached at the conclusion that time was the essence of contract in terms of Issue No.4(A), which is the primary issue and goes against appellant in this case as he has failed to discharge his onus of obligation to pay the amount of balance sale consideration within the stipulated time. Similarly, the findings on Issues Nos.1 and 2 are based upon the principles of discretion as highlighted by the apex Court in case reported as PLD 2015 SC 187 (Farzand Ali and others v. Khuda Bakhsh and others), wherein it has been held that: "The courts may refuse to allow the relief of specific enforcement. And that the court is neither obliged to grant the relief of specific performance nor can the plaintiff claim it as a matter of right. Therefore in our considered opinion, this case on account of its peculiar facts and circumstances has lo be decided and resolved in the light and on the basis of the discretionary principle."

23. The above referred principle has also been appreciated in 2018 CLC 648 Islamabad (Saeed Zillah Khan v. Muhammad Khalid and others), 2017 SCMR 1998 (Muhammad Sattar v. Tariq Javed), 1994 SCMR 111 (Abdul Aziz v. Abdur Rehman), 1994 SCMR 2189 (Mussarat Shouqat Ali v. Safia Khatoon) and 2010 SCMR 1507 (Shakeel Ahmad v. Shaheen Kausar), therefore, while relying upon the above referred principles, the discretion under section 22 of the Specific Relief Act, 1877 has been given to the Court to grant specific performance of contract arrived at between the parties, however such discretion must be exercised on sound judicial principles of equity, fairness, and conscience and not on erroneous assumptions or presumptions. The Court is not bound to grant relief merely because it is lawful to do so irrespective of the conduct of the contracting parties and no unfair advantage is to be given to a party or to the other in the suit for specific performance, especially to the appellant in this case who himself had neither honored the terms of the agreement nor showed any gesture of his bona fide for deposit of the balance sale consideration, therefore, the instant regular first appeal is misconceived and the same is hereby dismissed.

24. Before parting with the instant case, it is necessary to settle the issue of earnest money of Rs.325,000/ which was admittedly paid to respondent No.1, who has utilized the same for last 16 years, this Court is of the view that when value of the property has been increased manifolds and money has been devalued, therefore, while relying on principles referred in cases reported as 2017 SCMR 902 (Malik Bahadur Sher Khan v. Haji Shah Alam) and 2015 SCMR 12 (Muhammad Iqbal v. Mehboob Alam) respondent No.1 is directed to pay appellant Rs.3,250,000/- (Rupees Three Million Two Hundred and Fifty Thousand) by way of depositing the same in the account of learned trial Court within 30 days due to decrease in value of the money in last 16 years as he utilized the same for his own purpose and has also enjoyed the suit property at the same time.

25. Office is directed to prepare the decree sheet accordingly. ZC/94/Isl. Appeal dismissed.